Back in 2011, I wrote an article discussing whether signed waiver agreements are enforceable. The article cautioned that enforceability of such agreements requires that they be “clear and unambiguous.” A recent decision of the Colorado Court of Appeals in Stone v. Life Time Fitness, Inc., presents an interesting case-study of this principle that provides lessons for recreation businesses that ask their customers to sign such waiver agreements.

The plaintiff, Wendy Stone, was a member of a Life Time fitness club. She alleges that she was hurt in the women’s locker room after finishing a workout. Specifically, she alleges that she tripped on a blow dryer cord that was, unbeknownst to her, hanging to the floor beneath the sink and vanity counter top. She caught her foot in the cord and fell to the ground, fracturing her right ankle. Stone sued Life Time for damages and the trial court dismissed her case because Stone had signed a waiver agreement with Life Time. Stone appealed.

Stone did not dispute that the waiver agreement would prevent her from asserting claims for injuries she might sustain when working out on a treadmill, stationary bicycle or other exercise equipment or playing racquetball. However, she argued that it did not apply to injuries that occurred in the locker room. The appellate court agreed and found that the waiver agreement was not clear and unambiguous in this regard.

The court noted that waiver agreements are reviewed “for legal jargon, length and complication, and any likelihood of confusion or failure of a party to recognize the full extent of the release provisions.” The court indicated that “(t)he issue is not whether a detailed textual analysis would lead a court to determine that the language, even if ambiguous, ultimately would bar the plaintiff’s claims. Instead, the language must be clear and unambiguous and also ‘unequivocal’ to be enforceable.” In other words, it must leave no doubt as to its meaning when read by an ordinary person.

In this case, the waiver agreement consisted of dense fine print, for which a great many people would require a magnifying glass or reading glasses. The agreement was replete with legal jargon, using phrases and terms such as “affiliates, subsidiaries, successors, or assigns”; “assumption of risk”; “inherent risk of injury”; “includes, but is not limited to”; and “I agree to defend, indemnify and hold Life Time Fitness harmless.” Such language was not clear and simple to a layperson. One of the topic headings was confusing such that even a conscientious reader could reasonably have skipped over the fine print appearing beneath it believing it did not apply. The dominant focus of the waiver agreement was on the risks of strenuous exercise and use of exercise equipment at the fitness center. The agreement required Stone to assume the “inherent risk of injury,” but the court concluded that this term applies to dangerous, or potentially dangerous, activities rather than accidents occurring in more common situations, such as using locker rooms. Ironically, the court noted that Life Time previously won a similar case where a different waiver agreement drafted in 2000 (eleven years before the Stone agreement) did not suffer from these many infirmities.

The Stone decision is still in the court system and has an uncertain outcome, but it should nonetheless cause recreation businesses to examine their waiver agreement forms. Key considerations are whether such forms are free of legal jargon, brief, uncomplicated, not confusing and in big enough print. Another consideration is whether such forms comprehensively cover all potential liabilities — do they address not just jumping out of the airplane, but also walking across the tarmac. If not, there is a risk that such forms will fail to protect recreation businesses that rely on them.

Noah Klug is owner of The Klug Law Firm, LLC, in Summit County, Colorado. He may be reached at (970) 468-4953 or Noah@TheKlugLawFirm.com.

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